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2006 Supreme(All) 770
ALLAHABAD HIGH COURT
Rajes Kumar, J.
Ankur Technocrates
Versus
Commissioner, Trade Tax
Trade Tax Revision 1630 of 2005
Decided On : 09 March 2006
Trade Tax Revision 1630 Of 2005
KUNVAR SAXENA,
The burden of proving that machinery is new and has not been used in any other unit under Section 4-A of the Act can be discharged by providing sufficient evidence, and there is no requirement for a specific quantum or nature of evidence.
Headnote:
Trade Tax Act - Exemption Claim - Section 4-A - [FACT OF THE CASE] The applicant established a unit for manufacturing electrical wire and cables and claimed exemption under Section 4-A of the U. P. Trade Tax Act. The Divisional Level Committee rejected the application, leading to multiple appeals and remands. [FINDING OF THE COURT] The Tribunal found that the evidence supported the applicant's claim that the machinery installed in the unit was new and had not been used in any other unit. However, the Tribunal remanded the case to the DLC for further inquiry. [ISSUES] The court considered whether the remand for further inquiry was justified and whether the applicant had discharged the burden of proving that the machinery was new. [RATIO DECIDENDI] The court held that the unit had provided sufficient evidence to establish that the machinery was new and had not been used in any other unit, thus discharging its burden. The court found no justification for further inquiry and remand. [FINAL DECISION] The court allowed the revision, set aside the Tribunal's order, directed the DLC to treat the unit as a new unit, and issue an eligibility certificate under Section 4-A of the Act. The court also awarded costs to the applicant.
( 1 ) PRESENT revision under Section 11 of the U. P. Trade Tax Act (hereinafter referred to as the "act") is directed against the order of the Tribunal dated 15th June, 2005 by which the appeal filed by the applicant against the order of the Divisional Level Committee (hereinafter referred to as "dlc") dated 22nd February, 2004 has been allowed and the matter has been remanded back to the DLC.
( 2 ) THE brief facts of the case are that the applicant has set up a Unit for manufacturing of electrical Wire and Cables. The production was started on 13. 11. 1997 and date of sale was 17. 11. 1997. Applicant had filed exemption application before the Divisional Level Committee claiming exemption under Section 4-A of the U. P. Trade Tax Act on the ground that unit was new unit as defined under Section 4-A of the Act. The Divisional Level Committee vide order dated 12. 8. 1999 rejected the application. Applicant filed appeal before the Tribunal. Tribunal vide order dated 14. 2. 2000 set aside the order and remanded back the matter to the Divisional level Committee to decide the application after giving opportunity of hearing to the applicant. Divisional Level Committee again rejected the application on 18. 11. 2002. Against the said order, applicant filed appeal before the Tribunal, which was allowed vide order dated 19. 2. 2003 and the matter was again remanded back to the Divisional Level Committee to pass a speaking order after considering all the materials available on record. Divisional Level Committee vide order dated 21. 2. 2004 again rejected the application and against the order, applicant filed appeal before the Tribunal which has been rejected by the impugned order. Against the said order, applicant filed Revision No. 1020 of 2004 in this Court. This Court vide order dated 3rd February, 2005 allowed the revision and directed the Tribunal to decide the appeal afresh and in pursuance thereof, present appeal has been decided.
( 3 ) HEARD learned Counsel for the parties.
( 4 ) FROM the perusal of the record, it appears that initially the application under Section 4-A of the act was rejected by the DLC vide order dated 12. 8. 1999 on following three grounds.
(1) The unit has purchased the land/buildings from M/s Swastik Udyog. but the copy of the registered lease deed has not been filed. (2) The generator and boiler used in the unit are old one. (3) The Machinery used in the unit are said to have been purchased from a Delhi based seller namely M/s Universal Traders from which the chairs, almirah and other material have also been purchased. The purchase made by the unit is fictitious. The serial number given on the bills issued by the seller are doubtful. According to the import declaration Form No. F/bd-3020631 the machine/boiler purchased from the aforesaid seller are old one and, thus, the machines purchased from the said seller are doubtful and old one.
( 5 ) THE aforesaid order has been set aside by the Full Bench of the Tribunal vide judgment and order dated 14. 2. 2000 passed in appeal No. 108 of 1999 and the matter was remanded back to the DLC. In its order, Tribunal observed that no lease deed was required in this case in view of the Notification No. TT-II-780 and 781/ii-9 (226)-94, dated 31st March, 1995 as the premises of the unit belonged to U. P. State Industrial Development Authority and moreover the registered lease deed was produced by the unit. It was also observed therein that in view of the explanation (2-A) to Section 4-A of the Act, only for the reasons that the generator/boiler was old one, it could not be held that the appellant unit was not a new one.
( 6 ) WITH regard to the third ground. Tribunal observed that only by perusing the import declaration Form No. F/bd-3020631 and the bills issued by M/s Universal Traders, it does not seem justified to hold that the machines of the appellant unit were old one and in case of any doubt, necessary enquiry can be made by the DLC from Delhi.
( 7 ) THE
